Tuesday, May 29, 2018

Court says that discretionary bonus cannot be the “quo” for the sexual harassment “quid”

Quid pro quo is Latin for “something for something.” In employment law, it’s a specific theory of sexual harassment—“If you do this ‘thing’ for me, I’ll do something for your job.”

In Davenport v. Edward Jones & Co., the 5th Circuit held that a allegation of an unpaid bonus might not be enough to support an ex-employee’s sexual harassment claim under a quid pro pro theory.

TyAnne Davenport worked as a Branch Office Administrator in the Metairie, Louisiana, Edward Jones office managed by Brenden Coyne. Approximately a year into her employer, Coyne requested that she “date” a wealthy potential client in exchange for “big bonuses.” Davenport refused. The following month, Coyne completed Davenport’s annual evaluation, rated her as “exceeds expectations,” and recommended a four-percent salary increase. She did not, however, receive any bonus.

After other incidents of harassment (including a suggestion by Coyne that some “nudie” pictures of Davenport might still entice the wealthy potential client to move his business), Davenport finally complained about Coyne up the Edward Jones chain of command. When Edward Jones refused her request of transfer (telling her that it first needed to complete its two-and-a-half-month-old investigation), she resigned, and ultimately sued.

The 5th Circuit affirmed the district court’s dismissal of Davenport’s quid pro quo sexual harassment claim, because of the discretionary nature of the alleged unpaid bonus:
All Davenport knew was that she received a $400 bonus in March of 2015 after she completed her training and that Coyne had given her an “exceeds expectations” rating on her initial review. Based on this knowledge, she reasonably believed Coyne could influence subsequent bonus decisions through the review process. But Davenport produced no evidence of Edward Jones’s bonus structure; more particularly, she produced no evidence that she was eligible for or scheduled to receive a bonus in October 2015 simply because she received another “exceeds expectations” rating from Coyne. Additionally, she produced no evidence that Coyne either recommended for or against her receiving a bonus at that time.… In sum, Davenport produced no summary-judgment evidence that, under Edward Jones’s bonus policy, she was eligible for a bonus in October 2015 that Coyne could either approve or disapprove. Consequently, Davenport produced no summary judgment evidence that Coyne and Edward Jones denied her a bonus because she refused to date Fisher.

Feel free to file this case under bad facts make bad law. Future employer-defendants will cite this case for the proposition that the denial discretionary benefit cannot support a quid pro pro harassment claim. Yet, in some regard, just about any promise could be discretionary.

     “If you sleep with me, I’ll promote you.” (discretionary)
     “If you date me, I won’t fire you.” (discretionary)
     “If you date this customer, I’ll award you a bonus.” (discretionary)

The failure here was not in the discretionary nature of the bonus that Davenport did not receive, but in the fact that Davenport did not allege any facts to show that Coyne possessed the authority to award that bonus.

But should that lack of actual authority matter? Taking the facts of this case one step further, what if Davenport actually “dated” the wealthy prospect, and was still denied a bonus? Would she then have a claim for the unpaid bonus after she upheld her end of the supposed bargain? Shouldn’t a branch manager at least have the apparent authority to make bonus decisions. And, if he does, and if Davenport could have asserted a claim for an unpaid bonus if she upheld her end of the “dating” bargain, shouldn’t the failed bonus in this case support her quid pro quo harassment claim?

As you can see, I don’t love this opinion. What do you think? Should her claim at least survived summary judgment for a jury to determine the validity of her harassment claim? Share your thoughts in the comments below.

* Photo by Mihai Surdu on Unsplash